Severe Penalties for Sexting: The Legal Consequences of Using Obscene or Lewd Language on Cellular Phones

Author:  Attorney Christopher A. Meyer

Many people seem to use obscene or lewd language on a cellphone that they would never use in face to face conversation.  In Virginia, use of this language on the telephone is not only crude and inappropriate, it’s illegal.  Profane, lewd or vulgar language over a telephone has been a criminal offense in Virginia for many years.  Up until this year, Virginia statutes read as follows:

“Any person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens and illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor.

Over any telephone includes, for the purposes of this section, any electronically transmitted message that is received or transmitted by telephone. “[1]

As you can tell, this statute is outdated – it does not cover the use of modern communication devices like cell phones, smartphones, tablet PCs, and similar devices, and does not cover texting.  To modernize this law, the General Assembly has amended and updated the statute.  Effective July 1, 2011, the last sentence of the statute now reads as follows:

“Over any telephone includes, for the purposes of this section, any electronically transmitted communication producing a visual or electronic message that is received or transmitted by cellular telephone or other wireless communications device.”[2]

This statutory change (shown by the italics) makes sexting or harassment by text message a Class 1 misdemeanor.  Use of obscene, vulgar, profane, lewd, lascivious, or indecent language by telephone was already a Class 1 misdemeanor, and now this has been expanded to other electronic devices.  Class 1 misdemeanors are punishable by up to one year in jail and a fine of up to $2,500 – or both[3].

In light of this updated law, and due to the inherently public – and irreversible – nature of electronic communication, remember to carefully consider whatever you send out on the internet.  Such actions are no longer just a matter of bad manners.  Now the penalty for failing to do so might be expensive.  And  – with texting or emailed pictures – the proof is right there on the receiver’s electronic device.

About the Author: Chris Meyer is a car lawyer in Mechanicsville Virginia with Allen & Allen. He assists client with car accident claims in Mechanicsville, Hanover and the surrounding areas. Recognized as a talented and persuasive writer, he has penned numerous articles and seminar materials on issues such as insurance coverage, legal ethics and evolving case law in Virginia.   As a respected lawyer in Virginia, Chris is regularly asked to lecture on Virginia Legal Ethics and recent decisions of the Virginia Supreme Court.